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L&L Employment Q&A series: Rio Olympics 2016 (no. 4/5)

For example, what to do when you suspect that your employee has called in sick to watch an Olympic event on TV? What about employees taking holidays to attend the games, or even participate as an athlete?

Over coming weeks, we will provide practical answers to five of such employment questions and will comment on the legal pitfalls which might exist under BE, NL and LUX law.

Q:Your employee, Josh, has taken a two-week holiday to attend the men’s hockey semi-final between the Netherlands and Belgium. His flight was scheduled to return on Wednesday August 17th and he is due to start working again on Thursday. However, his flight is cancelled due to an airport strike and he is delayed by two days. As a result, Josh will only return to work on Monday. What is the consequence under Belgian, Dutch and Luxembourg law?

Belgium

A. The strike at the Rio airport prevents Josh from coming back home on due time. Therefore, this can be considered an Act of God (force majeure), i.e. an event which is beyond the control of the employer and employee, and which puts both parties in such position that it is impossible for them to carry out their contractual obligations. As the employee cannot perform his duties during these two days, the employer is not obliged to pay any salary.

In any case, Josh should immediately inform his employer about his delay.

Given that no salary is due during Josh’s absence on Thursday and Friday, the employer can propose that Josh take these additional days as holiday. Especially seeing as how Josh will likely spend these two days laying on the Copacabana beach to perfect his tan.

The situation would be different if Josh had been travelling from home to work and, due to an unforeseen strike affecting the public transport, arrived late or had been absent from work. In such a case, the employer would be obliged to pay guaranteed salary if Josh can prove that the delay or absence was caused during his way to work and independent of his will. Had the strike been announced and reported in the press, Josh would lose his right to guaranteed salary.

If urgent work needs to be done, both parties can decide that the employee will work from home (or his hotel in Rio) if the employee’s job function allows him to do so and he has the necessary equipment (e.g. laptop, internet,…).

The Netherlands

A. An employee is not, in principle, eligible for payment if he or she fails to carry out the work due to circumstances for which he or she is responsible. In a nutshell, “no work, no pay”. Situations for which the employee bears the risk include returning late from a holiday, coming to work late, participating in strikes or serving a prison sentence. In other words, you are entitled to withhold Josh’s salary for the days he has not worked. Instead of not paying his salary, a more pragmatic approach may be to suggest that Josh take two additional vacation days. This way Josh will not suffer any income loss. You cannot however oblige him to take those two days as holiday.

As from a date yet to be determined in 2016, the main rule “no work, no pay” will no longer apply. The new starting point is that the employer must pay the salary if the employee does not work, unless the employer can demonstrate that the employee should reasonably bear the risk of not working. In other words: “no work, but still pay”. Accordingly, the burden of proof has been reversed, meaning that the employer must now prove that the employee bears the risk for the non-performance of the work. Under the new legislation, Josh’s employer could probably still claim that a strike (of an airline) is a cause for which the employee bears the risk and that consequently no salary is due.

Luxembourg

A: Josh is probably rather worried as, in principle, absenteeism at work constitutes a major misconduct (which can result in the dismissal of the employee). But no need for him to panic just yet! There is an exception, if the absence is justified, according to the Luxembourg Labour code.

Specifically, an absence is justified if the employee is absent due to force majeure or due to a situation which is beyond their control. For example, in 2010 the Luxembourg courts decided that the eruption of the Icelandic volcano and related bad weather conditions which disturbed transportation represented force majeure.

Similarly, an airline employee strike would probably be considered a case of force majeure (if it was not announced in the media before Josh went on holiday). Therefore, Josh cannot be dismissed due to his absence from work on Monday and Tuesday.

Nevertheless, Josh does have to inform his employer as soon as possible. He also has to do his best to find another means of transport to get to work as soon as possible (although swimming across the Atlantic would probably take longer than waiting for a new flight…unless Josh is able to swim at super Olympic speeds himself!). If he does not inform his employer, Josh could be sanctioned. Dismissal for gross misconduct, however, would be deemed disproportionate in his case.

It would appear that there are no legal provisions obliging the employer to pay the employee for these additional days off. So, Josh’s employer has a few choices. He could:

not pay Josh for these two additional days off;

deduct these days from Josh’s paid annual leave, with his consent and if he is still entitled to annual leave;

alternatively recover the working hours for these two days, within the limits set by the Labour code.

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